|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Western Australian Student Law Review |
DIRECTORS’ DUTIES: DO THEY ENCOMPASS A DUTY TO OBSERVE HUMAN RIGHTS?
AMELIA HIRST[*]
CORPORATIONS LAW—DIRECTORS’ DUTIES—CORPORATIONS ACT 2001 (CTH)—SECTIONS 180(1), 181(1) AND 184(1)—HUMAN RIGHTS— DIRECTORS’ DUTIES AND THE OBSERVATION OF HUMAN RIGHTS
ABSTRACT
The relationship between corporate activity and human rights has become increasingly intertwined as community expectations of corporations have changed throughout the 21st century. This article will focus on ss 180(1) and 181(1)(a) of the Corporations Act 2001 (Cth) and explore how these sections encompass a duty to observe human rights. Corporate social responsibility practices are now an important aspect of the changing corporate sphere. The traditional view that the directors’ primary duty is to promote the financial interest of the company and its shareholding is challenged by this new dynamic, because of the potential consequences for companies found to be violating human rights. The relationship between the observation of human rights and economic loss is explored as a way of establishing the existing duty directors have to observe human rights. Ultimately, it is argued that the Corporations Act 2001 (Cth), in its current form, provides sufficient scope for directors to observe human rights in discharging their duties to the company.
I INTRODUCTION
Human rights in corporate law is an emerging paradigm in a newly established social and political climate. The emergence of human rights in this context is evident through increased self-regulated reporting on corporate social responsibility by corporations.[1] This article will explore the notion that, through rising community expectations and corporate social responsibility practices, there is an expectation that directors observe human rights. Under the existing framework, set out by the Corporations Act 2001 (Cth) (‘Corporations Act’), there is sufficient scope to establish that directors’ duties encompass a duty to observe human rights. The relationship between corporate law and human rights is essential as platforms such as the internet and social media have forced corporations into being more transparent in their dealings.[2] Furthermore, Australian shareholders are increasingly aligning their practices with human rights issues in response to changing community expectations.[3]
Part II of this article will explore the concept of human rights and the relationship between human rights and corporate activity. Part III will analyse ss 180(1) and 181(1)(a) of the Corporations Act and discuss how the judiciary has interpreted the purpose and scope of directors’ duties within the context of these provisions. In Part IV, the Modern Slavery Act 2018 (Cth) (‘Modern Slavery Act’) will be examined, identifying the growing shift towards the observation of human rights in corporate activity. Part V will analyse ‘soft law’ and its relationship to directors’ duties and human rights. Part VI will briefly discuss the emerging trend of corporate social responsibility and the benefits that flow from considering human rights impacts in the context of a company’s corporate governance. This essay will conclude with a discussion of recent case law where the need for directors to be conscious of human rights has arisen. Ultimately, it is argued that while there is no express reference to human rights in the Corporations Act, case law supports the proposition that the legislation provides sufficient scope for directors to comply with human rights in order to discharge their duties to the company.
II HUMAN RIGHTS
Human rights are defined as fundamental rights which are inherent in every individual.[4] Human rights are based on concepts of human dignity and equality.[5] Since the Universal Declaration of Human Rights,[6] discussion and awareness surrounding human rights have increased. Globalisation is a leading factor in both the development and exploitation of human rights within a corporate context. On the one hand, it can be argued that globalisation has led to the improvement of human rights standards through the spread of liberal ideas.[7] However, globalisation has contributed to an informal economy where workers are exploited, and inequality has risen.[8] This is particularly evident amongst transnational corporations where companies are able to operate in overseas jurisdictions with lower human rights standards. The informal economy comprises all forms of informal employment that are not legally regulated or protected.[9] According to a United Nations study, 61 per cent of the worlds employed population are employed through the informal economy with jobs including agricultural labour, unregistered miners and garment workers.[10] Examples of instances where human rights and corporate law cross over include labour rights which require corporations to pay fair wages, the right to non-discrimination, environmental factors such as access to clean drinking water, and the rights of Indigenous peoples.[11]
The Racial Discrimination Act 1975 (Cth) and Modern Slavery Act are two ways in which human rights are legislated for in Australia. European Union law, Directive 2014/95/EU, explicitly require companies with over 500 employees to publish reports on the social and environmental impacts of their activities, including human rights.[12] The government has traditionally held the primary responsibility of protecting and promoting human rights. However, as corporate activity increases, and the impacts of such activity on human rights are more prevalent, changing social attitudes have highlighted that there is scope under the current legislative framework to impose this responsibility on directors.
III DIRECTORS’ DUTIES IN AUSTRALIAN LAW
The relationship between human rights laws, directors’ duties, and the corporate governance framework is complex. It is important to first identify the relevant directors’ duties in Australian law. Directors derive their power from the replaceable rules within the Corporations Act, which state that a company is to be managed by or under the direction of the directors.[13] Directors may exercise all powers of the company except where the Corporations Act or the company’s constitution require a general meeting for the act to be valid.[14] The powers that s 198A provides directors are extensive and, because of this, directors need to be regulated in order to ensure their duties are upheld to contemporary standards. Importantly in this context, directors of the company are separate from the company itself. Companies have the legal capacity and power of an individual.[15]
In Australia, directors’ duties exist at both common law and in statute. Within the Corporations Act, there are several provisions relating to directors’ duties. Section 180(1) provides a statutory duty of care—requiring directors to exercise their powers with care and diligence.[16] Section 181(1)(a) requires that a director or officer of a corporation exercise their powers and discharge their duties in good faith and in the best interests of the company.[17]
Section 184(1) provides that if a director or officer is reckless or intentionally dishonest and fails to exercise their powers and duties in good faith or for a proper purpose, an offence will have been committed.[18] The difference between s 184(1), and ss 180(1) and 181(1)(a) is that the latter two are civil penalty provisions; while s 184(1) is a criminal offence. This is important to note given the penalties will greatly differ depending on the provision.
A Care and Diligence
The duty of care, skill and diligence is an objective test and while it will depend on subjective factors, including the size of the business and the director's experience, a minimum standard of diligence exists.[19] Section 180(1) requires directors to perform their duties with the degree of care and diligence that a reasonable person would exercise if they were a director or officer of a company in the same circumstances. If harm to the company’s interests is a reasonably foreseeable consequence of the director’s action, without the benefit of hindsight, there will be a breach of s 180(1).[20] The importance of this provision as it relates to human rights and directors’ duties can be explored through reputational harm.
In Australian Securities and Investments Commission v Cassimatis (No 8) (‘Cassimatis’),[21] Edelman J explained that harm should not be constrained to financial harm and can include reputational damage.[22] Recently, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry highlighted that even financial institutions must now accept that financial risks are not the only risks that matter.[23] A prudent director, in exercising care and diligence would give sufficient attention to non-financial risks such as the exploitation of workers in developing nations, and the impacts this may have on brand value. It is therefore argued that where a director’s failure to observe human rights results in reputational damage, there may be a breach of s 180(1). Of course, directors may find safe harbour in the business judgment rule as outlined in s 180(2).
A business judgment is defined as any decision to take or not take action in respect of a matter relevant to the business operations of a corporation.[24] Essentially, the business judgment rule acts as a defence for directors who have not exercised due care and diligence in relation to honest, informed and rational business judgments where all the elements of s 180(2) are met.[25] In the context of human rights, directors of companies who operate their supply chains overseas could potentially rely on the business judgement rule for acts which increase productivity and lower costs but violate human rights such as labour rights. However, in light of Cassimatis, it is arguably the case that no rational business judgement could be made which infringes on human rights because of the risk of reputational damage.
B Good Faith and Best Interests
Section 181(1)(a) imposes a statutory duty which requires directors and officers to exercise their duties in good faith and in the best interests of the company. Good faith is not defined in the Corporations Act; however, the common law has interpreted good faith to mean acting bona fide in the interests of the company as a whole and not for any collateral purpose.[26] Traditionally, to act in the best interest of the company meant to act in the best interest of shareholders.[27] From a corporate governance perspective, this is more commonly known as the shareholder primacy theory.[28] The basis of this theory is that corporations should maximise profits for shareholders.[29] This is despite the fact that a registered company is a separate legal entity distinct from its shareholders.[30] This narrow interpretation of good faith, therefore, excludes consideration of human rights unless it directly relates to shareholder interests or is specified in the company’s constitution.[31]
Determining whether there is a breach of the duty prescribed in s 181(1)(a) involves both subjective and objective tests.[32] The statute is in addition to the general law, not in derogation from it.[33] Justice Owen outlined that the subjective element considers the state of mind of the director in determining whether they honestly considered the exercise of power to be in the best interest of the company.[34] The objective element arises as the court may intervene in rejecting the director's subjective beliefs,[35] which it will do in circumstances where the decision is such that no reasonable person could think it was in the best interest of the company.[36] The ‘enlightened self-interest’[37] approach to good faith, in contrast with the narrow approach above, acknowledges that investing in corporate social responsibility is in the commercial interest of the company.[38] In the 21st century the enlightened self-interest approach is the more appropriate way to approach this duty. This approach allows directors to take into consideration a broader range of interests including human rights to deliver sustainable, long-term viability.[39] A connection can then be made that ensuring observance of human rights is in the best interests of the company and thus warrants consideration from directors.
The recent introduction of the Modern Slavery Act forms part of the growing trend of accountability in corporate activity. The Modern Slavery Act requires entities based or operating in Australia, with a consolidated revenue of more than $100 million, to report annually on the risks of modern slavery and any actions taken to address those risks.[40] The importance of this legislation is that it seeks to address the abovementioned statistics surrounding the informal economy that are, in many circumstances, adversely impacted by corporate activity. The Modern Slavery Act requires entities to report on the conduct of their supply chains, as opposed to simply reporting on their operations in Australia. Corporations are constantly in competition with each other to produce new products at lower costs and to do so are heavily reliant on global supply chains to manufacture their goods.[41] Global supply chains rely on the informal economy, where employees work in unregulated conditions and without protection, an environment where modern slavey can ensue. The introduction of the Modern Slavery Act recognises the argument that corporations and their directors have a responsibility to observe human rights in their operations.
Modern slavery is defined to include offences under Division 270 or 271 of the Criminal Code Act 1995 (Cth) which include human trafficking and child labour. It is not uncommon for large, well-known brands to infringe on human rights through the use of child labour in offshore operations.[42] While the legislation does not compel entities to adhere to any human rights laws, the mandatory reporting requirements ensure that entities at least take into consideration human rights. The external pressures from shareholders and consumers are likely to have a direct impact on how directors comply with human rights laws through their existing duties in the future.[43]
IV ‘SOFT LAW’ AND DIRECTOR’S DUTIES
Soft law is a term used to describe non-binding rules and principles.[44] Soft law arise in international law in the form of declarations which are often politically and practically important.[45] Community expectations naturally change over time, and it is the court's responsibility to apply a standard of care which reflects contemporary views concerning corporate behaviour.[46] Soft law can assist the court in ensuring these contemporary values are reflected, as demonstrated when Austin J determined that evidence from books, articles and commentators was relevant in determining the responsibilities of the director.[47]
A Corporate Governance Principles and Recommendations (‘Governance Principles’)
Bearing the above comments in mind, the Governance Principles may have weight in determining whether directors should consider and respect human rights. The Governance Principles recommend corporate governance practices for entities listed on the Australian Stock Exchange (‘ASX’).[48] While only applying to companies listed on the ASX, they are useful for non-listed entities in informing their corporate governance standards. The ASX Listing Rules require that listed companies include, in annual reporting or on its website, to what extent the recommendations have been applied.[49] The relevant principles concerning directors’ duties and human rights are as follows:
1. Principle 3 provides that listed entities should instil a culture of acting lawfully, ethically and responsibly;[50] and
2. Principle 7 provides that listed entities should establish sound risk management frameworks and periodically review their effectiveness.[51]
The terms ‘ethically’ and ‘responsibly’ in Principle 3 give rise to the consideration of human rights as they relate to moral behaviour in a corporate context. In the third edition of the Governance Principles, commentary made specific reference to respecting the human rights of a listed entity’s employees. Interestingly, Principle 3 in the fourth edition, published in 2019, has removed references to human rights. Principle 3 has been amended to recommend that listed entities disclose a statement of values which should consider the need for the entity to preserve and protect its reputation.[52]
Principle 7, in dealing with risk management, can be further related to human rights. Companies face a variety of risks, which are both financial and non-financial and will differ depending on the context of the entity.[53] As such, corporate activity that may have human rights consequences should be treated by directors as a significant risk. Not doing so could result in labour risks (i.e. strikes), damaged reputation and potential litigation.[54] All of these factors have the ability to impact the company and its shareholders negatively. Therefore, the Governance Principles as part of soft law do influence directors of ASX listed companies to respect human rights.
B United Nations Guiding Principles on Business and Human Rights 2011 (‘Guiding Principles’)
The Guiding Principles on Business and Human Rights established the first international standard for preventing and addressing the risk of adverse impacts, including human rights violations linked to corporate activity.[55] These measures are an important step toward acknowledging the responsibility companies have in respecting human rights, particularly as this is a consideration with increasing value to shareholders.[56]
While the guiding principles are not legally binding, companies may be forced to comply with them through contractual duties.[57] This may arise if a company is a member of an association which imposes contractual duties to comply with the Guiding Principles.[58] A further example is where a company is providing services to the government, which imposes commitments to respect human rights. While this approach has yet to be exemplified in Australia, examples can be found in other nations, such as the Netherlands.[59]
In 2013, the Netherlands introduced a National Action Plan on Business and Human Rights as a way of implementing the Guiding Principles which states that, as part of their sustainable procurement policy, all companies supplying goods or services to the government must respect human rights.[60] This is implemented via the tender process where social conditions and potential supply chain risks are identified in the application.[61] While the implementation of a national plan or strategy—like that exhibited in the Netherlands—would likely strengthen Australia’s current Guiding Principles; the principles themselves are an important shift towards recognising companies and directors as having duties to respect human rights.
II CORPORATE SOCIAL RESPONSIBILITY
As the Corporations Act does not deal expressly with any duty to respect human rights, the way corporations and directors may engage with the Governance Principles is primarily through corporate social responsibility practices. Corporate social responsibility can be understood to mean ‘the responsibility of enterprises for their impacts on society’.[62] The impact of corporate activity is widespread and significant.[63] Consequently, it is important that an obligation arises for corporations to account for their impact through corporate social responsibility.
As a key element of corporate governance, corporate social responsibility is also relevant in the context of corporate disclosure which allows investors to make informed decisions.[64] As stated previously, human rights and a social license to operate are becoming increasingly important considerations for investors due to rising community expectations.[65] This growing concern was highlighted in McVeigh v Retail Employees Superannuation Pty Ltd,[66] where a 23 year old man, Mark McVeigh, commenced legal action against the trustee of his superannuation fund for allegedly breaching its fiduciary duties by failing to adequately consider climate change risk in his investment. Whilst this does not directly relate to directors’ duties, it is important to note as it highlights the changing attitudes of Australian investors and the role that community expectations play in informing these attitudes.
Corporations are responding to the argument that responsible social and environmental conduct has a positive relationship with financial performance.[67] This is evident through increased voluntary acts of corporate social responsibility reporting and the fact that it is unusual for a large company in a developed nation to not have a policy addressing the social and environmental impacts of its operations.[68]
Corporate social responsibility is voluntary and, with respect to human rights, it is not driven by international law; but primarily by the assumption of responsibility by the business.[69] Nonetheless, increased acts of voluntary corporate social responsibility indicates a rising trend in the consideration of external stakeholders and promotes ethical corporate behaviour.[70] While corporate social responsibility does not impose legal obligations on directors to respect human rights, companies face a level of public scrutiny, meaning that transparency in corporate activity is in the company’s best interests. Furthermore, case law indicates that directors’ duties and the standard of care are to be determined with reference to modern community expectations.[71] If a corporation has a corporate social responsibility policy, it is arguable that the judiciary should consider this in determining what the directors’ duties encompass.
V CASE STUDIES
In multi-national corporations where subsidiaries operate overseas, directors are able to hide behind the separate legal entity doctrine.[72] A recent Canadian authority, Das v George Weston Limited,[73] highlights the complexity of cases surrounding offshore operations and provides an example of how human rights can be violated. Das v George Weston Limited concerned the collapse of a garment factory, Rana Plaza in Bangladesh, killing over 1100 people and injuring a further 2520.[74] Rana Plaza was constructed in 2006 as a six-floor complex without the required approvals and was not designed for the industrial use it eventually became used for.[75] The building was later expanded by three additional floors, and at the time of the collapse, the ninth floor was nearing completion.[76]
The defendants, two Loblaws, purchased 50 per cent of the manufactured goods produced by New Waves, a manufacturer that operated in Rana Plaza, and had engaged Bureau Veritas to conduct social audits.[77] Firstly, the plaintiffs attempted to advance the argument that breaches occurred in Ontario where the entity held office. The Court, however, held that this was not the case and Bangladesh law applied to the claims.[78] This finding was significant as the statute of limitations under Bangladesh law required claims to be brought within one year, which this claim was not.[79] As members brought their claim outside of the limitations period, the claims of the proposed class action members, other than those who were minors at the time of the collapse were barred.
The plaintiffs argued that both defendants were liable for negligence and that Loblaws was responsible for the negligence of its suppliers.[80] The essence of this argument was that Loblaws, knowing of the dangerous workplaces in Bangladesh, had voluntarily undertaken the responsibility to ensure that their garments were produced in buildings that were structurally sound.[81] Loblaws had retained Bureau Veritas to audit factories, including the New Wave factory located in Rana Plaza, to ensure compliance with Loblaws’ corporate social responsibility standards.[82] The social audits performed highlighted failures relating to the safety of equipment, emergency exits and fire alarm systems.[83] Yet, the Court did not find this sufficient to impose a duty of care. The plaintiffs also argued that Loblaws breached their fiduciary duty by failing to ensure that the social audits were performed comprehensively to identify and remedy structural defects.[84] However, the Court did not consider the relationship between Loblaws and the class members to be of sufficient proximity to establish either a duty of care or a fiduciary relationship.[85] The members of the class action were largely employees of New Wave, which was a supplier to Loblaws and not its subsidiary.[86]
Finally, the Court held there was no duty of care grounded in the corporate social responsibility.[87] The Court determined that it would be unfair to recognise a duty of care in this case based on Loblaws’ corporate social responsibility because other purchasers of goods from New Wave who do not have a corporate social responsibility practice but are equally aware of the conditions would have no duty of care.[88] Das v George Weston Limited illustrates the ways in which directors can evade their own corporate social responsibility standards and highlights some of the issues surrounding enforcement.
Australian Securities and Investments Commission v Flugge (No 2) (‘ASIC v Flugge’),[89] is another important case with respect to human rights in the Australian context. ASIC v Flugge involved the export of wheat to Iraq by AWB Ltd, where disguised payments were made to the Iraqi government.[90] During the period of the defendant’s sale of wheat to Iraq, Iraq was subject to United Nations sanctions which prohibited payments to Iraq in internationally traded currencies.[91] These sanctions were an important introduction in response to the First Gulf War, largely to promote international peace by ridding the nation of weapons of mass destruction. ASIC alleged breaches of ss 180 and 181(1) of the Corporations Act by the chairperson, directors and other officers.[92]
The defendant, Mr Flugge, who was the chairman and director of AWB Ltd, was held to have breached s 180(1) by failing to make inquiries about the payments and advise the board of directors.[93] The defendant was disqualified by ASIC from managing companies pursuant to s 206C of the Corporations Act.[94] The charges arose out of a Royal Commission, which also suggested the officers may have committed criminal offences, liability for which did not eventuate but is nonetheless notable.[95] While the export of wheat itself is not a human rights violation, the context in which these sanctions arose meant that human rights were relevant. This is an important case in identifying the importance of the United Nations, as well as the Australian government, in holding directors accountable. The case further illustrates the identifiable connection between corporations and human rights.
VI CONCLUSION
The Corporations Act does not expressly impose an obligation on directors to observe human rights. Even so, this article argues that it is within the scope of the legislation to consider human rights as part of a directors’ duty pursuant to ss 180 and 181. The Corporations and Markets Advisory Committee concluded that current legislative construction provides sufficient flexibility for directors to consider particular stakeholders or the broader community without the need for reform.[96] The judicial commentary appears to support this, particularly in ASIC v Rich where reference was made by Austin J to the fact that the standard of care of directors has risen and ought to be considered with respect to modern community expectations.[97]
A positive relationship between financial interests and human rights have been highlighted in this article. It is evident that attitudes of investors are changing with factors such as human rights, climate change, and a social license to operate becoming increasingly important considerations. While financial harm and reputational harm were distinguished in Cassimatis, it is unlikely that reputational harm would not also result in financial harm. Therefore, a prudent and responsible director, acting in the best interests of the company, would consider human rights through the enlightened self-interest approach.[98] This should not necessarily be seen as a derogation from acting in the best interests of the shareholder generally, as directors will inevitably enhance shareholder profit by managing reputational risk.
The soft law discussed throughout, as well as the rising trend of corporate social responsibility implementation, supports the notion that human rights should be observed as part of a director’s duty. The influence of both soft law and corporate social responsibility may become more important factors for the judiciary to consider in determining whether directors’ duties have been breached in future cases. However, it is suspected that difficulties will continue to arise in relation to enforcement as well as establishing a breach of duty, given the majority of human rights abuses occur in overseas jurisdictions
[*] LLB and BA (International Relations), Curtin University, Perth.
[1] Riana Cermak, ‘Directors’ Duties to Respect Human Rights in Offshore Operations and Supply Chains: An Emerging Paradigm’ (2018) 36 Companies and Securities Law Journal 124, 133.
[2] Ibid 138.
[3] Ibid 139.
[4] Encyclopaedic Australian Legal Dictionary (online at 1 October 2019) ‘human rights’ def 1.
[5] Ibid.
[6] Universal Declaration of Human Rights, opened for signature 21 December 1965, 217 A (III) (entered into force 25 September 2018).
[7] Shabina Artfat, ‘Globalisation and Human Rights: An Overview of its Impact’ (2013) 1(1) American Journal of Humanities and Social Sciences 18.
[8] Ibid.
[9] Martha Alter Chen, ‘Rethinking the Informal Economy: Linkages with the Formal Economy and the Formal Regulatory Environment’ (Working Paper No 46/2007, United Nations Department of Economic and Social Affairs) 1.
[10] United Nations News Centre, Nearly Two-thirds of Global Workforce in the ‘Informal’ Economy – UN study (Web Page, 2 May 2018) <https://unaavictoria.org.au/2018/05/02/nearly-two-thirds-global-workforce-informal-economy-un-study/>.
[11] Australian Human Rights Commission, Integrating Human Rights Into Australian Business Practice (Web Page, 30 April 2018) <https://www.humanrights.gov.au/employers/business-and-human-rights/business-and-human-rights-factsheets/integrating-human-rights>; Australian Human Rights Commission, Corporate Social Responsibility & Human Rights (Web Page) <https://www.humanrights.gov.au/our-work/corporate-social-responsibility-human-rights>.
[12] European Commission, Non-Financial Reporting (Web Page) <https://ec.europa.eu/info/business-economy-euro/company-reporting-and-auditing/company-reporting/non-financial-reporting_en>.
[13] Corporations Act 2001 (Cth) s 198A(1) (‘Corporations Act’).
[14] Ibid s 198A(2).
[17] Ibid s 181(1)(a).
[19] Daniels v Anderson (1995) 37 NSWLR 438, 503; Australian Securities and Investments Commission v Rich [2003] NSWSC 85; (2003) 174 FLR 128, 140 [48] (‘ASIC v Rich’).
[20] Australian Securities and Investments Commission v Vines [2005] NSWSC 738 [1077].
[21] [2016] FCA 1023 (‘Cassimatis’).
[22] Cassimatis [2016] FCA 1023 [483].
[23] Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, February 2019) vol 1, 406.
[24] Corporations Act (n 13) s 180(3).
[25] Explanatory Memorandum, Corporate Law Economic Reform Program Bill 1998 (Cth) [6.1].
[26] Australian Securities and Investments Commission v Adler (2002) 168 FLR 263; The Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 39 WAR 1, 584 [4623].
[27] Shelley Marshall and Ian Ramsay, ‘Stakeholders and Directors’ Duties: Law, Theory and Evidence’ [2012] UNSWLawJl 12; (2012) 35(1) University of New South Wales Law Journal 291, 300.
[28] See generally Governance Institute of Australia, ‘Shareholder primacy: Is there a need for change?’ (Discussion Paper, February 2014).
[29] Ibid 5.
[30] Salomon v A Salomon & Co Ltd [1897] AC 22; Corporations Act (n 13) Part 1.5.
[31] Cermak (n 1) 128.
[32] The Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 39 WAR 1, 583 [4619] (‘The Bell Group’).
[33] Corporations Act (n 13) s 185.
[34] The Bell Group Ltd (n 32) 577 [4591].
[35] Corporations Act (n 13) s 180.
[36] Ibid.
[37] Cermak (n 1) 129.
[38] Corporations and Marketing Advisory Committee, Parliament of Australia, The Social Responsibility of Corporations (2006) 40 (‘The Social Responsibility of Corporations’).
[39] Cermak (n 1) 129.
[40] Modern Slavery Act 2018 (Cth) s 3.
[41] Justine Nolan and Nana Frishling, ‘Australia’s Modern Slavery Act: Towards Meaningful Compliance’ (2019) 37 Companies and Securities Law Journal 104, 110.
[42] See, eg, Australian Broadcasting Company, ‘Australian Retailers Rivers, Coles, Target, Kmart Linked to Bangladesh Factory Worker Abuse’, Four Corners (online, 24 June 2013) <https://www.abc.net.au/news/2013-06-24/australian-retailers-linked-to-sweatshop-abuse/4773738>.
[43] Nolan and Frishling (n 41) 112.
[44] Andrew T. Guzman and Timothy L. Meyer, ‘International Soft Law’ (2010) 2(1) Journal of Legal Analysis 174.
[45] Encyclopaedic Australian Legal Dictionary (online at 21 October 2019) ‘soft law’ def 1.
[46] ASIC v Rich [2003] NSWSC 85; (2003) 174 FLR 128, 147 [71].
[47] Ibid 144 [75].
[48] ASX Corporate Governance Council, Corporate Governance Principles and Recommendations (4th ed, 2019) 16 (‘Corporate Governance Principles and Recommendations’).
[49] Australian Securities Exchange, Listing Rules (19 December 2016) r 4.10.3.
[50] Corporate Governance Principles and Recommendations (n 48) 16.
[51] Ibid 26.
[52] Ibid 16.
[53] OECD, Risk Management and Corporate Governance (OECD Publishing, 2014) 13.
[54] Patricia Dermansky, ‘Should Australia Replace Section 181 of the Corporations Act 2001 (Cth) With Wording Similar to Section 172 of the Companies Act 2006 (UK)?’ (Research Paper, University of Melbourne Centre for Corporate Law, 2009) 16.
[55] ‘Business and Human Rights’, United Nations Human Rights Office of the High Commissioner (Web Page) <https://www.ohchr.org/en/issues/business/pages/businessindex.aspx>.
[56] Cermak (n 1) 139.
[57] John Sutherland, ‘Human Rights and Business Lawyers: The 2011 Watershed’ (2016) 90 Australian Law Journal 889, 894.
[58] Ibid.
[59] Ibid.
[60] Ministry of Foreign Affairs, National Action Plan on Business and Human Rights (Report, 1 February 2014) <https://www.business-humanrights.org/sites/default/files/documents/netherlands-national-action-plan.pdf>.
[61] Dutch Public Procurement Expertise Centre, Step 1: Preparing the Invitation to Tender (Web Page) <https://www.pianoo.nl/en/sustainable-public-procurement/spp-themes/social-conditions/getting-started/step-1-preparing>.
[62] European Commission, ‘A Renewed EU Strategy 2011–14 for Corporate Social Responsibility’ (Communication No 681, European Commission, 25 October 2011) 6.
[63] Phillip Lynch, ‘Human Rights and Corporate Social Responsibility: An Australian Perspective’ (2006) 1(4) Corporate Governance Law Review 402, 406.
[64] Tony Ciro and Ewa Banasik, ‘Socially Responsible Investments: Markets, Regulations and Compliance Risks’ (2009) 20 Journal of Banking and Finance Law and Practice 332, 336.
[65] Cermak (n 1) 139.
[67] Lynch (n 63) 415.
[68] Paul Redmond, ‘Directors Duties and Corporate Social Responsiveness’ [2012] UNSWLawJl 13; (2012) 35(1) University of New South Wales Law Journal 317, 321.
[69] Ibid 323.
[70] Ibid.
[71] ASIC v Rich (n 19) 147 [71].
[72] Corporations Act (n 13) s 180(3).
[74] Ibid [130].
[75] Ibid [82].
[76] Ibid [83].
[77] Ibid [3].
[78] Ibid [5].
[79] Ibid [208].
[80] Ibid [117].
[81] Ibid [121].
[82] Ibid [52].
[83] Ibid [66].
[84] Ibid [127].
[85] Ibid [435].
[86] Ibid [25].
[87] Ibid [533].
[88] Ibid [533].
[89] [2017] VSC 117; (2017) 342 ALR 478 (‘ASIC v Flugge (No 2)’).
[90] Ibid 480 [13].
[91] Ibid 481 [13].
[92] Ibid 479 [1].
[93] Ibid 481 [16].
[94] ASIC v Flugge (No 2) [2017] VSC 117; (2017) 342 ALR 478, 503 [135].
[95] Re AWB Ltd (No 1) [2008] VSC 473; (2008) 21 VR 252.
[96] The Social Responsibility of Corporations (n 38) 7.
[97] ASIC v Rich (n 19) 147 [71].
[98] Cermak (n 1) 129; The Bell Group Ltd (n 32) [4395].
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/WAStuLawRw/2020/2.html